The Deportation Power
Constitutionally protected liberties
The Bill of Rights protects noncitizens in cases NOT involving direct challenges to deportability grounds. You CAN be deported for exercising your rights. ☹
Harisiades v. Shaughnessy (1952) – SC rejects 1st Am challenge to the Palmer Raids and deportation based on Communist Party membership.
But you have to compare immigration rules with what the 1st Am. protected at that time in history. In 1903, polygamists and anarchists were excludable based on beliefs, not behavior
Bridges v. Wixon (1945)- Murphy concurrence says deporting for exercising rights is ridiculous and doesn’t make sense once alien has lawfully entered and resides here. Bill of Rights should trump plenary power.
Currently: §212(a)(3)(d) denies admission to current Communist/totalitariam party members. §212(f) delegates to the President more power to deny on ideological grounds.
Kleindienst v. Mandel (1972) – U.S. profs said it was THEIR 1st Am right to listen to Marxist prof excluded from U.S. SC said they were only restricting his action (entry) and there were alternatives for receiving his info. Too broad.
It is not selective prosecution to target deportable aliens based on group membership AADC v. Reno (1999) (PLO affiliates). There are NOT the same standards for 1st Am challenges to criminal grounds and deportation grounds. Even where LPRs are concerned, rational basis review is all you get.
Deportability Grounds – INA§237(a)
(1)(A) – Inadmissible at time of entry – aka “delayed exclusion”
No statute of limitations
Doesn’t matter if you passed inspection at the border
(H) – Waiver for those inadmissible for fraud/misrepresentation in visa admission who have close relatives in the U.S. Easier to get than the related exclusion waiver in § 212(i).
(1)(B) – Presence in the United States in violation of the law – nonimmigrants with revoked or expired visas (overstayers). Overstays > 180 days invoke the 3/10 year bars. This ground ONLY applies to those previously admitted or paroled, NOT EWIs.
(1)(C) – Failure to maintain status (work without authorization, leave school, etc.)
(1)(E) – Smuggling aliens, aiding illegal entry.
(2) – Criminal convictions. About 40K noncitizens/year removed on criminal grounds.
Almost always not deportation for the act, but for the conviction for the crime. Exception: (2)(b)(1) is for being a drug abuser or addict – determined on the facts, not a prior conviction
Rule of lenity – a vague statute should be construed in favor of the defendant. A criminal statute does not get Chevron deference.
Crime of moral turpitude, (2)(A). No real definition. Basically something that’s intrinsically morally bad or depraved or has an evil intent.
Only deportable if committed within 5 years of admission
Posner: I’d give Chevron deference to a definition if the BIA would provide one, but they haven’t.
Categorical approach: court examines the crime in the abstract for moral turpitude, not the specifics of alien’s commission of it
Severity and volition are factors, but mainly just precedent on that crime.
Examples that are: voluntary or involuntary manslaughter, tax evasion, possessing stolen property, sodomy pre-Lawrence, lying on the FAFSA, most serious crimes against persons and property or that have fraud as an element
Examples that are not: escape from prison, carrying a concealed weapon, aiding alien in unlawful entry, possession of an altered immigration document, structuring financial transactions to avoid currency reports (Goldeshtein, 1993)
Aggravated felony, defined in a list in § 101(a)(3).
Anything on the list is an “aggravated felony”, even if it’s not aggravated or not a felony, like statutory rape is in many jurisdictions. Guerrero-Perez, 7th Cir 2001. (class A misdemeanor for criminal sexual abuse for sex with a 15-year old when 19 was an AF under the Act)
Conviction must be a final disposition, not on appeal or habeas challenge.
Leocal – Previously DUI was a “crime of violence,” (§ 101(a)(43)(F))but unanimous SC said there must be more than negligence leading to force to be a crime of violence.
Aggravated felons not eligible for most relief from deportation: asylum, cancellation of removal, voluntary departure. Not entitled to ordinary judicial review of deportation order based on the conviction. Barred for life from reentering U.S. w/o consent from the AG to reapply.
State courts try to oversee and make sure defendants know immigration consequences in plea bargains. Less oversight in fed courts. BIA recognizes as a defective conviction one where state courts didn’t inform.
SC just found for the “hypothetical federal felony approach” – meaning the AF ground doesn’t (always) encompass state felony convictions where the underlying conduct is not punishable as a felony under federal law. Good.
Drug offenses, (2)(B). Draconian and crappy – covers any conviction relating to a controlled substance, incl. possession, under the influence, and misdemeanors. Flores-Arellano, 9th Cir 1993 ((2)(B) reaches misdemeanor state conviction for being UTI of amphetamine)
Should be a final conviction, but even a suspended sentence or an expunged record short of a full pardon can make you deportable.
Domestic abuse waiver – DHS has discretion to waive deportation for crimes if the battered victim was not the primary perpetrator of the abuse and was acting in self-defense, or was convicted of a crime not involving bodily injury that was connected to the abuse or cruelty.
(3)(c) – Document fraud or failure to register- anyone subject to a final order under § 274C, a civil violation for document fraud that the gov proves with a preponderance of the evidence (and with no automatic hearing, the respondent must request one).
(4) – Security grounds (see E.) Incl. past Nazis.
(5) – Public charge within five years of entry (from causes not arising after entry)
(6) – Unlawful voters
(7) – No valid permanent residence card